Jаmes E. SIMPSON, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-89-1335
Court of Criminal Appeals of Oklahoma
June 8, 1994
Rehearing Denied July 27, 1994
876 P.2d 690
LUMPKIN, Presiding Judge
Defendant O‘Bryan: Yes.
Defense Counsel: Okay.
The Court: All right.
The record is clear that Appellant made a knowing and intelligent waiver of her right to a lesser included offense instruction and chose instead to rely on an all or nothing approach.1 Accordingly, we find this proposition to be without merit.
DECISION
The Judgment and Sentence of the trial court is AFFIRMED.
LUMPKIN, P.J., and JOHNSON, V.P.J., and LANE, J., concur.
CHAPEL, J., specially concurs.
CHAPEL, Judge, specially concurring:
Although I agree with the majority that a defendant may waive the right to a lesser included offense instruction, I believe the Court should expand its opinion to more fully develop the doctrine of mutuality which governs this issue. That doctrine dictates that a defendant may not unilaterally waive a lesser included offense instruction and in effect preclude the trial court by veto from giving it. State v. Keffer, 860 P.2d 1118, 1123 (Wyo. 1993).
First, it is the trial court‘s duty to instruct on the law. Accordingly,
[t]his Court has consistently held that it is the duty of the trial court to determine as a matter of law whether the evidence is sufficient to justify the submission of instructions on a lesser included offense, and if there is doubt, the court should submit the matter to the jury.
Rowland v. State, 817 P.2d 263, 266 (Okl.Cr. 1991) (citations omitted). Once the trial court has determined an instruction on a lesser included offense is warranted, such an instruction must be given. Keffer, 860 P.2d at 1132 (failure to give lesser included offense instruсtion supported by the evidence violates due process). The only exception is if the instruction is waived, and the State does not object to that waiver.
The doctrine of mutuality is a logical outgrowth of the purposes behind lesser included offense instructions, which are:
[to] both aid the prosecution if the proof presented at trial fails to establish all of the elements of the charged offense and also to give the defendant the benefit of a less drastic alternative than a choice between conviction and acquittal on the charged offense.
Keffer, 860 P.2d at 1125. Because lesser included offense instructions are for the benefit of both the State and the defense, both have the right to demand and receive such an instruction when the evidence warrants it. Therefore, I would make perfectly clear that if the State had objected to the defendant‘s waiver of the lesser included offense instruction in this case, the trial court would have been precluded from allowing her to waive it. Because the State did not object to the defendant‘s waiver in this case, I concur.
Brad Morelli, Guthrie, for appellant at trial.
Michael Wilson, Asst. Appellate Indigent Defender, Norman, for appellant on appeal.
Laura Austin Thomas, Marty McLaughlin, Asst. Dist. Attys., Guthrie, for State at trial.
Susan Brimer Loving, Atty. Gen. of Oklahoma, Sandra D. Howard, Asst. Atty. Gen., Chief, Criminal Div., Oklahoma City, for State on appeal.
OPINION
LUMPKIN, Presiding Judge:
Appellant James E. Simpson was tried by a Logan County jury in case no. CRF-88-42, and convicted of Count I, Sodomy (
The facts and issues presented in this case require the Court to analyze the historical jurisprudence of this Court, together with federal caselaw, in order to reset the plumb line previously established by our caselaw regarding the concept of fundamental error and the scope of review on appeal when an objection has not been preserved during the trial. Periodically, it is necessary to restate what has previously been enunciated regarding the procedural prerequisites for preserving error for appellate review, together with the appropriate scope of that review.
I.
Appellant has not challenged the sufficiency of the evidence; therefore, an extensive recitation of facts is unnecessary. Suffice it to say that Appellant was convicted of performing the above acts with B.S., his daughter. When the daughter was eight years old and the mother was out of town attending her mother‘s funeral, Appellant lured B.S. to his bed, kissed her, talked her into taking off her nightgown, then talked her into sucking on his penis. He did this by telling her it was all right to do this, because her mother did the same thing. He also told B.S. not to tell anyone, that it would be their “secret.” B.S. performed these oral sexual acts with Appellant on a regular basis until just before Christmas 1987, when she told her father she was tired of performing them. During this time, Appellant would show the child pictures of naked women in bondage, telling her they might try that some time. He also showed her a pornographic film depicting women having intercourse with men, and performing oral sodomy on men. He pointed out to her how the women “deep throated” the men in the film, and talked her into trying the procedure on him. These acts would usually occur when the child‘s mother was asleep or gone.
B.S. grew tired of the film and attempted to discourage its use by cutting out a certain portion of the film, throwing it under the porch, and eventually telling Appellant she no longer wanted to perform the oral sexual acts. At that point, Appellant talked her into having vaginal intercourse with him, again telling her it was normal. The girl was 11 years old at this point. These acts then continued on a regular basis in various parts of the residence and in a camper which was just outside the residence. The sexual acts stopped only after B.S. saw a film at school, began talking to friends, and discovered the relationship with her father was not normal.
Acting on a search warrant, authorities found a cache of magazines showing naked women in bondagе and/or being tortured. Also found was the film the child described, and a scrapbook containing individual pictures of women in bondage, being tortured, or showing their genitalia disfigured by foreign objects. They also found a picture of a naked woman on the wall above Appellant‘s bed.
Appellant in his first proposition points out a violation of the provisions of
The State admits there is no evidence of an in camera hearing, but advances two arguments. It first points out that counsel failed to object to the women‘s testimony at the time it was offered, arguing Appellant has therefore waived the proposition for all but
Appellant responds our holding in Spears v. State, 805 P.2d 681, 683 (Okl.Cr.1991) precludes a harmless error analysis. In Spears, the Appellant likewise failed to object; however, this Court held the error was fundamental, and reversed. Appellant then argues the error was not harmless under the circumstances of this case. He claims the State ignored this Court‘s holding in Spears, and implies fundamental error always necessitates reversal. This case identifies the need for this Court to address and put into perspective the concept of what has previously been labeled as fundamental error. In addition, we must also define the scope and process of review of allegations of error not preserved at trial, together with the application of harmless error analysis.
The inconsistency of the ideas of absolutely precluding harmless errоr in this area of the Evidence Code while allowing the possibility in other areas of the Code has forced us to re-examine our holding in Spears. We do so, and now hold Spears is incorrect insofar as it precludes the possibility of harmless error under any circumstances; and to that extent, it must be overruled.
II.
A.
This analysis must begin by turning to the Evidence Code itself. The pertinent section here reads:
A. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected, and:
1. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context;
. . .
D. Nothing in this section precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
Therefore, this provision in the Evidence Code is consistent with our previous holdings in which we have held failure to object to the introduction of evidence waives1 all but fun-
B.
The term “fundamental error” apparently was first used by this Court in Rea v. State, 3 Okl.Cr. 281, 105 P. 386 (1909), where the definition appeared in syllabus 2(c) as errors “which go to the foundation of the case, or which take from a defendant a right whiсh was essential to his defense.” This definition has maintained its integrity since that time. See e.g., Morrison v. State, 37 Okl.Cr. 359, 361, 258 P. 1050 (1927); Tyler v. State, 74 Okl.Cr. 39, 41, 122 P.2d 826, 827 (1942); Jones v. State, 77 Okl.Cr. 285, 303, 141 P.2d 109 (1943); Smith v. State, 79 Okl.Cr. 1, 29, 151 P.2d 74 (1944); Holman v. State, 97 Okl.Cr. 279, 284, 262 P.2d 456 (1953); Jones v. State, 772 P.2d 922, 925 (Okl.Cr.1989). From this, it is obvious this Court in the past has interpreted the terms “plain error,” “fundamental error” and “substantial right” to connote the same meaning. This is an important point, which we discuss in more detail below. Suffice it to say here that pursuant to our prior jurisprudence, the application of the concept of “fundamental error” means this Court will review on appeal an allegation of error even if an objection was not made at trial, if the alleged error meets the definition. Review of an alleged item of “fundamental error” does not mean ipso facto the error, if found, will mandate reversal. It only means the error can be reviewed on appeal; and waiver by failure to object will not preclude its review.
This Court has also used other terms in dealing with the determination of when reversal is required. Some cases use the term “injury,” observing that not only error, but error plus “injury” is necessary before this Court will reverse a conviction. “Injury” has been defined as “an error which affected the result.” Ryan v. State, 8 Okl.Cr. 623, 627, 129 P. 685 (1913). Others speak of “material” in the context of “material error” or “material character,” which is defined as something “of solid or weighty character; of consequence; not to be dispensed with; important; specific; especially law, such as does or would affect the determination of a case, the effect of an instrument, or the like; constituting a matter that is entitled to consideration, such as must be considered in deciding a case on its merits.” Thompson v. State, 6 Okl.Cr. 50, 67, 117 P. 216 (1911). We find as a practical matter there seems to be little difference in the terms. Whatever the label, an error which has no bearing on the outcome of the trial will not mandate a reversal.
The State argues in the alternative that, even if the complaint is not deemed waived, it is harmless beyond a reasonable doubt. We therefore must examine the terms to determine if fundamental error can be harmless, and the standard this Court must use in determining when reversal must occur. A review of past cases indicates the difference between the terms “harmless error” and “fundamental error” seems to be important primarily when it comes to preserving the record for review.
A.
When defense counsel fails to object, the earlier courts deemed the error waived on appeal and did not review it.³ Perhaps the strongest example of such a policy was shown in Huff v. Territory, 15 Okla. 376, 383, 85 P. 241, 243 (1905), where this Court‘s predecessor noted the court committed error when he ordered the arrest of a witness on a witness stand. The territorial court observed this action was “such an infringement of the rights of the defendant as would warrant the reversal of the judgment and the granting of a new trial, if the error had not been waived by a failure to object or except to the action of the court.” Responding to appellate counsel‘s assertions the error was fundamental, the Court noted his authorities were not persuasive, adding:
When the defect goes to the jurisdiction of the court, or the sufficiency of the charge to support the judgment, an appellate court will examine into such questions, although presented for the first time in said court, unless they have been waived by some express action of the accused. But errors occurring on the trial of the cause must be excepted to and presented in the motion for new trial, or they will be treated as waived by the accused. The proceedings here complained of come within the latter class.
Id. A historical exposition for this stringent requirement was enunciated in Bias v. United States, 3 Ind. Terr. 27, 38-39, 53 S.W. 471, 475 (1899):
“Upon the question of exceptions in a case of murder, there seems to be upon the part of the bar, a prevailing idea that courts of appeal will notice and pass upon errors, whether exceptions are saved or not.... We know of no law which makes a difference between a criminal and a civil case in this particular, and presume that the practice has grown up because of the disposition of courts of appeal to act leniently in cases involving human life, because of the magnitude of the issue. The issue, however, is not greater here than it was in the court below, and rests no more heavily on the shoulders of the court than on those of defendant‘s counsel. . . . One of the objects of making an exception specific and certain is that the judge of the trial court shall have it pointed to him, that he may correct it then and there, or at least have an opportunity to do so. . . . The [United States] supreme court say: ‘There was no pretense that the charge of the court . . . was erroneous in every part, and no exception to any particular part is shown. The rule is that genеral exceptions to a charge, which do not direct the attention of the court to the particular portions of it to which objection is made, raise no question for review.‘” And the supreme court refused to consider those only pointed out by the brief.
Id. at 475.
Later cases noted the Court could review for fundamental error.⁴ These cases
seem to indicate that, if this Court has had an area in which it routinely errs, it would be in reviewing based on the concept of fundamental error and reversing all cases where a proposition is otherwise waived because it was not properly preserved. See Jones v. State, 772 P.2d 922, 925 (Okl.Cr.1989) (indicating fundamental review should be conducted only in “exceptional circumstances” “if they seriously affect the fairness, integrity or public reputation of judicial proceedings“). As previously stated, an application of a fundamental error concept only allows a review on appeal of an allegation of error to which no objection was made at trial if that error meets the definition of plain error. It does not alter the process of reviewing the allegation of error in the normal analysis methodology which includes not only a showing of error plus injury, but also a harmless error review.
B.
Harmless error is nothing this Court invented. In 1909 this Court observed
there must be prejudice, injury, or harm from a technical error before it could be ground for a reversal. This is our position precisely. There is nothing new or revolutionary about it. We are simply resetting the ancient landmarks and enforcing a principle which cannot be disputed, without doing great violence to justice, but which is too often lost sight of and disregarded by appellate courts.⁵
Moody v. United States, 2 Okl.Cr. 662, 667, 103 P. 862 (1909) (on rehearing). While fundamental error becomes relevant when an error is not properly preserved by objection, early cases indicate harmless error comes into play when a point is properly preserved for appellate review. The idea is succinctly stated in Bilton v. Territory, 1 Okl.Cr. 566, 99 P. 163 (1909), where this Court stated:
Where the language used by the assistant United States attorney in his opening statement is calculated to prejudice the accused, and proper objection is made and overruled by the court, and exception taken, the question will be reviewed by this court, but not otherwise. Where the assistant United States attorney in his argument to the jury went outside of the record, and apрealed to the passions and prejudices of the jury, and objection was made and overruled, the strength of the testimony against the defendant will be considered, and, if the improper statements may have determined the verdict, a new trial will be granted.
Id. at 583, 99 P. 163. At the time of statehood and before, the books contained a statute (
Obviously, the weaker the evidence against a defendant, the less likely the error is to be harmless. Compare Foster v. State, 11 Okl.Cr. 25, 34, 141 P. 449 (1914) (when evidence is strong, a conviction will not be set aside, even if the error would require reversal in a doubtful case) with Mayberry v. State, 64 Okl.Cr. 298, 301, 79 P.2d 1027 (1938) (if the evidence agаinst a defendant is weak and unsatisfactory, the record should be free from prejudicial error to avoid reversal).
Here, the complained-of evidence is strong and consistent. This leads us to the crux of this discussion. We have previously held failure to have a hearing in accordance with the directives of
IV.
Our decision that plain error is subject to harmless error analysis is based primarily in logic and the settled rule of statutory con-
struction that a Legislature is presumed not to do a vain act. The following illustration based on cases we encounter every day points out the fallacy in holding plain error always necessitates reversal.
Typically, a witness is on the stand, and the prosecutor seeks to elicit certain evidence from him. The prosecutor asks the question, and the witness gives a very damning answer.⁸ We see two relevant possibilities:
(1) If defense counsel objects, and the trial court overrules the objection and allows in the evidence, the court has committed error. However, as we noted above, it is not only error, but also injury, that requires reversal. As injury has been defined as “an error which affected the result,” applying harmless error analysis this Court will not overturn unless appellant can show the improper evidence contributed to the conviction.
(2) If defense counsel does not object, this Court has repeatedly held the error is waived for all but fundamental error, now properly known as plain error, which has been defined as an error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense. As we have traditionally interpreted this definition, if the improper evidence contributes to the conviction, we will reverse with-
In other words, failure to object coupled with the allegation of plain error on appeal would give an Appellant more favorаble review of this issue than in an instance where an objection was properly lodged. Were this the intended result, there could be only one logical conclusion: there is no need to object. Defense counsel can “lay behind the log” by doing nothing, yet obtain relief from an appellate court, even though by doing nothing counsel fails to give the trial court the opportunity to correct the mistake, and may have deliberately built error into the record. If there is no need to object, the statute dictating an objection must be made (
This problem is not one solely identified by this Court but has been recognized by evidence authorities. See Saltzburg and Redden, Federal Rules of Evidence Manual at 19 (2d ed. 1977), where the author said:
“The Rule may thus be contradictory. On the one hand it suggests that there is a penalty for failing either to object or make an offer of proof, i.e., an Appellate Court will not consider any error on appeal unless substantial rights are affected. But, if any error is harmless unless substantial rights are affected, it is not clear what is gained by making a timely objection at trial.”
At least two other authorities have suggested there is a difference between fundamental/plain error and reversible error.
Although Rule 103 [the federal equivalent of our
In his discussion of Rule 52 of the Federal Rules of Criminal Procedure, subdivision (a) of which refers to harmless error while subdivision (b) deals with plain error, Professor Moore has concluded:
The form in which the Rule is drafted is ambiguous. It might be read as creating a distinction in degree between errors raised below which, once found to be prejudicial, automatically give rise to reversal, and error not raised below which must be “very” prejudicial to produce a reversal. Many appellate decisions speak as if premised on this distinction but one cannot find any real differenсe in the way the different verbal formulae are actually applied to the facts of particular cases.
Weinstein & Berger, Evidence § 103[07] (quoting 8A Moore‘s Federal Practice § 52.-02) [parenthetical added] (emphasis in original) (footnote omitted).
Another authority has said:
Appellate courts ordinarily are chary of claims of plain error because of their fear that they are being made unwitting accomplices to defense counsel who deliberately forgo the making of an objection in the hope that the trial court will unwittingly commit reversible plain error. To guard against such abuse of the adversary process, appellate courts insist that the error at trial to have been quite clear and obvious despite the absence of any objection. Furthermore, as a practical matter, the party claiming plain error will carry a far greater burden in convincing an appellate court that the error, even if “obvious,” was prejudicial. This principle of “prejudice plus” is sometimes enshrined in a formal rule.
1 Wigmore, Evidence at 796, § 18 (4th ed. 1983).
A few federal cases (more recent than Eierman, cited above) have addressed the situation, and appear to reach the same result. In Herzog v. United States, 235 F.2d 664 (9th Cir.1956), cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956), an appellant
... If we felt ourselves confronted with an extraordinary situation such as would justify a disregard of Rule 30⁹ we would consider the argument. But a reading of the instructions as a whole, plus an examination of the evidence pertinent to the matters being reheard, leaves us with no belief or apprehension that the giving of the willfulness charge may have resulted in a miscarriage of justice or in the denial to appellant of a fair trial.
Id. at 668. In United States v. Gomez-Osorio, 957 F.2d 636 (9th Cir.1992), an appellant complained on appeal an expert witness improperly testified. The court noted error, but declined to reverse, noting the testimony was not referred to in closing argument, the complained-of testimony was only a part of the remainder of the testimony offered, and the remainder of the evidence sufficiently supported his conviction. The court concluded a new trial was not necessary “to prevent a miscarriage of justice or to preserve the integrity of the judicial process.” Id. at 642 (quoting United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986)).
This “miscarriage of justice” philosophy was also noted in United States v. McGill, 952 F.2d 16 (1st Cir.1991). There, appellant, a jail guard, was charged with violating a prisoner‘s civil rights by playing a form of Russian roulette with him he had seen in the movie “The Deerhunter.” During trial, the prosecution played the film for the jury. Defense counsel did not object to the film‘s playing at trial. The court noted the undeniably prejudicial effect the film would have, but said its focus must be on whether the “fundamental fairness of the trial” was undermined; or putting it another way, wheth-
er “a miscarriage of justice would otherwise result.” Id. at 18 (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)). The court added that the movie was relevant, and
“[s]o long as evidence is relevant, it is hen‘s-teeth rare that we, from the vista of a cold appellate record, can justifiably say, particularly in the absence of a contemporaneous objection, that the evidence‘s probative value was so outweighed by the specter of unfair prejudice that its introduction constituted reversible error.1⁰ Indeed, the cases are legion in which we, and other courts, have refused to overturn verdicts notwithstanding the trial judge‘s allowance of evidence which, though relevant, was grisly, sensational, or otherwise daunting.”
In summary, then, “plain” or “fundamental” error allows an appellant to get before this Court a complaint which would otherwise be completely waived. However, the fact an error may be plain and prejudicial does not automatically guarantee reversal. In other words, it gets an apрellant‘s foot in the door; it does not guarantee a sale, which should be “hen‘s-teeth rare.”
Enacting a rule requiring “prejudice/injury plus” or that an error be “very” injurious or prejudicial would strike a balance between the old, draconian rule barring an appellant from any possible relief because his attorney failed to preserve an error; and reflexively reversing every time an error might prejudice a case when to do so would not prevent a “miscarriage of justice,” and we do so here. Cf. United States v. Olano, 507 U.S. at 734-35, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508, 518 (1993) (In discussing the difference between “harmless error” which governs errors not forfeited by failure to raise an objection, and “plain error,” which governs those otherwise forfeited, the Supreme Court ob-
V.
Having determined fundamental error is merely a vehicle to bring before this Court on appeal alleged errors which would otherwise be waived by failure to object at trial, we must now determine the appropriate standard of review for this type of error.
As stated above, the common law doctrine that an error presumes injury is not recognized in Oklahoma. Mitchell v. State, 7 Okl.Cr. 563, 569-70, 124 P. 1112 (1912). Therefore, the burden is on an appellant to show injury in most circumstances.¹²
Exactly how far an appellant must go to show this injury is uncertain. Two cases, Seth v. State, 647 P.2d 452, 455 (Okl.Cr.1982) and Glasgow v. State, 572 P.2d 290, 292 (Okl.Cr.1977), state the appellant bears a “heavy” burden of proving prejudice. Glasgow cites as authority
Caselaw is also limited on the standard which must be shown by the State to show the error was harmless once an appellant has met his “hеavy” burden. The standard for constitutional violations is well-known: reversal is in order unless the State can show the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Fritz v. State, 730 P.2d 530, 534 (Okl.Cr. 1986); In re Bishop, 443 P.2d 768, 773 (Okl. Cr.1968). This standard has effectively supplanted what would appear to be an even higher standard used by this Court in pre-Chapman cases, where denial of a constitutional right required reversal “unless the record clearly shows the right was waived, or that no injury could have resulted to the accused by reason of such denial.” Benton v. State, 86 Okl.Cr. 137, 156, 190 P.2d 168 (1948) (emphasis added); Chuculate v. State, 36 Okl.Cr. 404, 406-07, 254 P. 984 (1927).¹⁴ Under that standard, a constitutional viola-
However, Appellant has not raised a constitutional error; he has raised an error which occurred as a result of the court‘s failure to adhere to the dictates of a state statute. We have not addressed this particular aspect to any appreciable extent.
It appears the federal standard at one time required proof the error was harmless beyond a reasonable doubt on all errors, whether constitutional or not. See United States v. Gilliland, 586 F.2d 1384, 1391 (10th Cir.1978). In such a case, the only difference would be the threshold burden which required a showing of injury in a non-constitutional case. However, it appears the federal standard has changed. In United States v. Rivera, 900 F.2d 1462 (10th Cir.1990), the appellate court noted that in non-constitutional situations, an error is harmless unless it had a “substantial influence” on the outcome, or leaves the reviewing court in “grave doubt” as to whether it had such an effect. Id. at 1469 (citing Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946)). Kotteakos itself asks the question “what effect the error had or reasonably may have had on the jury‘s decision,” adding “[t]his must take account of what the error meant to them, not singled out and standing alone, but in relation to all else that happened.“¹⁵ The Court observed if the reviewing court was sure “the error did not influence the jury, or had a very slight effect, the verdict should stand, except perhaps where the departure is from a constitutional norm.” Id. We believe this to be a fair standard and use it here.
VI.
Therefore, we hold the error of the trial court in failing to hold an in camera hearing does not mandate reversal in this case. We do so because we have no “grave doubts” this failure had a “substantial influence” on the outcome of the trial. See J.J.J. v. State, 782 P.2d 944, 945-46 (Okl.Cr.1989) (trial court committed error by not holding a hearing out of the presence of the jury to determine the reliability of the hearsay testimony before it was presented to the jury as required by
Accordingly, this proposition of error is without merit.
VII.
For his second and last proposition of error, Appellant claims his counsel was ineffective. He claims prejudice in two areas: failure to object to an evidentiary harpoon; and failure to object to the introduction of nineteen (19) pornographic magazines.
We begin with the strong presumption trial counsel‘s conduct falls within the
Initially, we find no merit to Appellant‘s complaint concerning the magazines. Although when the magazines were first introduced, Appellant did object, he did so based on his earlier motion to suppress, which had been overruled. This Court will not consider as a basis for a proposition any objection other than the one offered at trial. Grant v. State, 764 P.2d 214, 215 (Okl.Cr.1988); Hughes v. State, 762 P.2d 977, 979 (Okl.Cr.1988). Consequently, we will review only on the basis of Appellant‘s claim of incompetent counsel.
Appellant has failed to preserve this portion of his complaint, as the magazines he complains of were not included in the record presented to this Court. Consequently, we cannot determine the effect such magazines might have had on the jury‘s determination. It is Appellant‘s responsibility to ensure this Court has a complete record for review. Hainey v. State, 740 P.2d 146, 152 (Okl.Cr.1987); Avey v. State, 723 P.2d 989, 992 (Okl.Cr.1986); O‘Dell v. State, 654 P.2d 621, 622-23 (Okl.Cr.1982); Nelson v. State, 355 P.2d 413, 416-17 (Okl.Cr.1960). If the claimed irregularity is not apparent from the record there is a presumption of regularity in the trial court proceedings. Huntley v. State, 750 P.2d 1134, 1136 (Okl.Cr.1988); Cooper v. State, 599 P.2d 419, 422 (Okl.Cr.1979); Battles v. State, 513 P.2d 1314 (Okl.Cr.1973). Appellant therefore has not rebutted that presumption of regularity.
Concerning the harpoon, Appellant has not presented us with anything to show the objection to the evidence would have made a difference in the outcome of his trial. In view of the strong evidence against Appellant, we do not think this failure would have made such a difference. Consequently, we find this proposition to be without merit.
Accordingly, Appellant‘s convictions are AFFIRMED.
CHAPEL, Judge, dissenting:
Constitutional and statutory criminal procedures serve an important and vital function, even in horribly tragic cases like the one before the Court today. Such constitutional and statutory safeguards protect the fairness of the judicial proceeding and ensure the reliability of its outcome. Without such safeguards we revert essentially to the tyranny of mob justice. Under our judicial system it is not supposed to be easy for the State to convict a citizen of a crime. Not only is the State obligated to simply prove that a defendant committed an offense, but also to prove beyond a reasonable doubt that the defendant is guilty. Moreover, and just as important, in convicting a citizen, the State, more than any other party to litigation, must be held accountable to follow our constitutional and statutory criminal rules and procedures.
In this case, Simpson argues his conviction ought to be reversed because the trial court failed to hold a hearing to determine the reliability of certain hearsay evidence. Failure to hold this hearing violates an Oklahoma statute,
In reviewing Simpson‘s claim, the majority attempts to clarify the meaning of “fundamental error,” “plain error,” and “reversible error,” and also engages in a lengthy discussion on the topic of harmless error. While I applaud the majority‘s effort to establish consistent terminology and to explain the methodology the Court should employ in analyzing trial errors, some of the conclusions and standards the majority sets forth are simply wrong. Moreover, I continue to be disturbed by the Court‘s willingness to find harmless error when the error was in fact harmful. Because I find certain aspects of the majority‘s analysis to be flawed and because I disagree with the ultimate finding that the
I.
In the interest of consistency and clarity, I agree the term “plain error” should be uniformly used to describe unobjected to errors affecting substantial rights. The United States Supreme Court can provide some guidance in the meaning of that term. In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Court discussed the meaning of “plain error” under the Federal Rules of Criminal Procedure. Under the federal system, plain error applies to those errors to which counsel fails to object at trial. See Fed.R.Crim.Proc. 52(b). Unobjected to errors rise to the level of plain error when the error is clear frоm the record and it affects substantial rights. The Supreme Court stated that an error affecting substantial rights “means that the error must have been prejudicial: It must have affected the outcome of the proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. at 1778. It is the defendant who bears the burden of showing prejudice with regard to plain error. Id.
Under the federal system plain error need not automatically result in reversal. Nonetheless, plain error should be corrected by federal appellate courts if the error “‘seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.‘” Olano, at 736, 113 S.Ct. at 1779. Federal courts should “no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant . . . but we have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence.” Olano, at 736, 113 S.Ct. at 1779 (citations omitted). “An error may seriously affect the fairness, integrity or public reputation of judicial proceedings, independent of defendant‘s innocence.” Olano, at 736-37, 113 S.Ct. at 1779 (citations omitted).
In contrast, an error to which counsel lodges a proper objection at trial is treated differently. When an appellant raises an error to whiсh he objected at trial, the government bears the burden of persuading the Court that, under the harmless error doctrine,¹ the error did not prejudice the defendant. Olano, 507 U.S. at 734, 113 S.Ct. at 1778. One reason for the varying treatment of these different errors is that counsel should be encouraged to raise all objections at trial. By raising the objection at trial, the trial court is in a position to correct or prevent the error thus assuring a fair trial and a reliable result. Requiring an appellant to show on appeal that the unobjected to error affected substantial rights creates an incentive to make timely and proper objections at trial so as to avoid having to make the “substantial rights” showing on appeal.
Although the Federal Rules of Criminal Procedure obviously do not apply to state criminal cases, the United States Supreme Court‘s discussion of the plain error rule provides a useful analogy. With regard to our state rules, I agree with the majority that a plain error is an error to which counsel failed to object at trial and which affects substantial rights. In my opinion, appellant bears the burden of establishing that the unobjected to error is an error affecting a substantial right, i.е. that he was prejudiced by the error. I also agree that once an error is deemed to be plain, reversal is not warranted if the state can show that the error was harmless. Although this formulation differs somewhat from the federal rules, I feel that, on its face, it provides sufficient safeguards to ensure that an appellant‘s rights are protected.²
However, the majority does not simply stop there. In sections III A., III B., IV, and V of the majority opinion, the majority imposes upon appellant the additional burden to show injury even where the error was properly preserved or found to be plain error
The concept of harmless error is well-established and particularly helpful in resolving meaningless errors which occur in most trials but which do not affect the fairness or outcome of the proceedings. Under this doctrine, not every constitutional error occurring at trial warrants reversal of appellant‘s conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Constitutional error need not result in reversal of a conviction if “the beneficiary of a constitutional error . . . prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Id. 386 U.S. at 24, 87 S.Ct. at 828. See Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); James v. State, 818 P.2d 918, 921-922 (Okl.Cr.1991). The burden thus is on the State — the beneficiary of the error — to prove beyond a reasonable doubt that the error is harmless.
Of course, not all constitutional violations are subject to harmless error analysis. For example, violations of the right to trial counsel, the right to an impartial judge, the prohibition against double jeopardy, the right to a representative jury and grand jury, and the right to a reasonable doubt instruction, are not subject to the harmless error rule. C.H. Whitebread & C. Slobogin, Criminal Procedure at 778-779 (3d ed. 1993). Thus, certain errors, whether there was an objection lodged at trial or not, would not be subject to harmless error analysis and would always constitute reversible error.
The Oklahoma legislature has established the harmless error rule to be applied in Oklahoma cases. Section 3001.1 of Title 20 provides:
No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
I view section 3001.1 as essentially codifying Chapman. Under
Section 3001.1 applies to both constitutional and statutory violations.³ Despite the plain language of § 3001.1, the majority creates a new standard and applies a less stringent standard of review to violations of Oklahoma statutory rules. The majority follows several fеderal court decisions which apply a “substantial influence” or “grave doubt” standard for reviewing the non-constitutional errors. While that approach might be appropriate in the federal courts, it is not the rule in Oklahoma. Section 3001.1 states that reversal is the appropriate remedy if “it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” (emphasis added) Apparently the Oklahoma legislature viewed the rules of criminal procedure and evidence that it pro-
II.
I now turn to the precise question before this Court: whether in Simpson‘s case the failure to hold a hearing in compliance with
Since trial counsel failed to object to the hearsay testimony, the error in failing to hold the hearing must rise to the level of plain error in order for this Court to review that error. Spears v. State, 805 P.2d 681, 682 (Okl.Cr.1991); Jones v. State, 781 P.2d 326, 330 (Okl.Cr.1989). Clearly, failure to hold the hearing violated Oklahoma law and is error. Moreover, this error affects Simpson‘s substantial right to test the reliability of out-of-court statements made by the child-victim. I agree with the majority that this error constitutes plain error.
The majority concludes, however, that this plain error does not warrant reversal of Simpson‘s conviction. I cannot agree. This Court has previously held non-compliance with the notice provision of
First, I must point out that the majority mistakenly characterizes the violation of
In my judgment the testimony of the counselor and the DHS worker clearly contributed to Simpson‘s conviction and undermined the reliability and fundamental fairness of the trial. This testimony was submitted absent any indication it was reliable. I cannot conclude such error did not prejudice Simpson. I am not persuaded by the majority‘s assertion that, because the hearsay statements were consistent with the child-victim‘s own in-court testimony, those hearsay statements are therefore reliable. Section 2803.1 contemplates that the child will testify at trial or that the child be unavailable. Thus, the legislature concluded that the hearing was necessary even though the child was testifying at trial. The consistency in the testimony does not obviate the error or the prejudice that inured to Simpson. See Kennedy v. State, 839 P.2d 667 (Okl.Cr.1992) (error in not holding
Notwithstanding the fact that Simpson is probably guilty, it is incumbent upon this Court to acknowledge the prejudice he suffered by failure to hold the required hearing. The hearing required by
For the foregoing reasons, I would reverse and remand for a new trial the convictions in Counts I, II and III. I would affirm the conviction in Count IV.
Notes
No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.